The TTIP leaks: what does it mean for your digital rights?

Last week, Greenpeace Netherlands released hundreds of pages of secret “TTIP” negotiation documents. TTIP, or the Transatlantic Trade and Investment Partnership, is an EU-US trade agreement that has been negotiated in near-complete secrecy since June of 2013. This massive disclosure could help trigger a better-informed public debate as it provides much-needed insight into what could be the world’s biggest trade agreement — one that could impact our fundamental human rights, environmental protections, and much, much more.

Early in the talks, more than 250 NGOs, including Access Now, sent a letter to the EU Commissioner for Trade addressing the lack of transparency and calling for the release of negotiating texts. The consensus for transparency goes well beyond civil society. During RightsCon — our yearly conference on human rights and technology — a coalition of civil society representatives, trade experts, and companies promoted the Brussels Declaration on Trade and the Internet, agreed upon on February 2016.

Since we once again find ourselves commenting on the text of a trade agreement that we can see only because of leaks, we cannot but reiterate our call for transparency. The lack of transparency and limited access to the document during the negotiation process has long obstructed participation by citizens and civil society. Yet without transparency, TTIP will have no legitimacy.

Nearly a year ago, Access Now provided you with an extensive overview of TTIP (PDF) and how it could potentially impact your privacy and free expression, as well as give international corporations more power over local legislation. The Greenpeace disclosure sheds light on worrisome measures discussed under the TTIP negotiations, measures that could harm fundamental rights. But that’s not the only thing the leak reveals. It also shows how little progress has been made after three years of negotiations, which raises doubt as to whether the EU and the US can conclude negotiations by the deadline in early 2017. In its current shape, it’s not likely the deal would be endorsed by the population across the pond.

EU and US on diverging paths regarding telecommunications

Very little progress has been made on the telecommunications chapter, which covers many issues where the EU and the US remain at odds. The US simultaneously calls for free competition while advancing market entry rules that are protectionist. Rules proposed by the US include requiring mandatory licenses for telcos operating in the US, which would make it difficult for companies, whether European or domestic, to enter the heavily consolidated US market. This could limit competition, potentially keeping prices higher and reducing the choice of operators.

The proposed measure in some ways reflects the current rules put in place by the Federal Communications Commission in the US, which may partially explain why the US telecoms market is dominated by only a handful of telecoms giants. A competitive and open broadband sector can serve a democratic society by allowing all voices to be heard at any level, without censorship, discrimination, or undue restrictions to free communication. In contrast to the US proposal, the EU proposal — while not being perfect — might promote more competition and reduce the administrative burden for telcos.

Other measures that the US promotes would protect its rulemaking system but, if adopted, could undermine the EU’s democratic decision-making system. The US would like to give telecoms regulators the power to decide whether or not to enforce some laws, or even to modify adopted legislation. While a system like that might work in the US, it would change the current balance of powers in the EU.

Discussion of data flows and encryption are missing, but may in fact just be stalled

One surprise from the disclosures is the absence of an e-commerce chapter. The documents indicate only that progress has been slow on e-commerce issues, including on the issue of data flows. “Data flows” is a vaguely defined, untested term used by trade negotiators to refer to the rules governing the exchange of data between the EU and the US. Several negotiators in Brussels have hinted that rules to be agreed under the “Privacy Shield” — an EU-US data-transfer arrangement — could be integrated into trade agreements. Representatives of civil society, including Access Now, have repeatedly asked for data flows to be kept out of the trade negotiations, since it necessarily draws into the discussions issues regarding the fundamental rights to privacy and data protection. Human rights are not a barrier to trade, but global standards that must be respected. Trade negotiations are neither a forum to discuss measures for the protection of privacy, nor a place to establish new standards.

Yet industry has been lobbying hard for its inclusion. So despite the lack of discussion in the leaked documents, we could see the issue on the negotiating table soon, as the documents do indicate that US telecommunications companies are “very interested in data flows”. Similarly, there do not appear to be any measures on encryption added to the text, which may also be to the displeasure of the US. Those, too, may still be forthcoming.

Positive steps: An agreement on Net Neutrality and new privacy protections?

There is some positive language in the leaked documents, suggested by the US, that could enable the EU and the US to safeguard internet users’ access to telcos’ networks and services, for instance through Net Neutrality. The proposal rightly does not seek to establish new standards on Net Neutrality, but leaves it up to the EU and the US to develop their own rules. This language represents a significant shift from what the US pushed in the early stages of the TTIP negotiations and in others trade deals. At that point, the US was pushing for ambiguous language that could have enabled network discrimination globally, to the detriment of the open internet. Similarly, the EU has a new proposal acknowledging the need for protecting the confidentiality of electronic communications, and this has the potential to enhance the right to privacy globally. However, even this positive language has an ambiguous exception, and that might limit the benefits of implementing it.

More transparency needed

We’re still hampered in our efforts to protect users’ rights when negotiations are kept secret and access to the text strictly controlled, regardless of how many leaks there may be. As we asserted in our analysis of TTIP in June of last year, we believe that, in line with EDRi’s Redlines on TTIP, negotiators should:

  • ensure transparency in the negotiations of trade agreements;
  • include a human rights protection clause in trade agreements; and
  • oppose any mechanism that would trump government’s democratically accountable right to regulate.

As it stands, we will continue to work to keep the public informed and involved in whatever way we can, to better protect your rights.